§ 3603 — Clifton-Fine health care corporation

§ 3603. Clifton-Fine health care corporation. 1. (a) There is hereby\ncreated a board to be known as the Clifton-Fine health care corporation\nwhich shall be a body corporate and politic constituting a public\nbenefit corporation.\n (b) The corporation shall be governed by eight voting directors to be\nappointed in the following manner as follows: (i) four directors shall\nbe appointed by the town supervisor of the town of Fine; and (ii) four\ndirectors shall be appointed by the town supervisor of the town of\nClifton, the governing body of each town shall make recommendations to\ntheir respective town supervisor pursuant to the recommendations of the\nboard of the hospital for the initial directors, and pursuant to the\nrecommendations of the board of the corporation for subsequent\ndirectors; provided, however, the town supervisors may appoint persons\nother than those so recommended. Any director absent for three\nsuccessive regular meetings shall be deemed to have resigned from the\nboard of directors unless said director has submitted in writing to the\nchairperson of the board of directors an acceptable reason for said\nabsences. The first directors shall be appointed for the following terms\nfrom the first day of January, two thousand as follows: one from each\ntown for a term of one year, one from each town for a term of two years,\none from each town for a term of three years and one from each town for\na term of four years. Subsequent appointments of directors shall be made\nin the same manner as set forth in this paragraph and for a term of five\nyears. All directors shall continue to hold office until their\nsuccessors are appointed and qualified. The resignation of any director\nshall be filed with the appointing authority and shall be effective when\nso filed. Vacancies occurring otherwise than by expiration of term of\noffice, shall be filled in the same manner as set forth in this\nparagraph by the supervisor of the respective town for the unexpired\nterm. Directors of the board may be removed from office for the same\nreasons and in the same manner as may be provided by law for the removal\nof officers of a town. The powers of the board shall be vested in and\nexercised by the directors as heretofore set forth and the board formed\nat a meeting called for said purpose by the chairperson of the existing\nboard of managers of the Clifton-Fine Hospital.\n (c) Each voting director should possess a high degree of experience or\nknowledge in relevant fields or a high degree of interest in the\ncorporation and should reside in either the town of Clifton or the town\nof Fine. The appointment of any voting director to the corporation shall\nbe based in part on the objective of ensuring that the corporation\nincludes diverse and beneficial perspectives and experience, including,\nbut not limited to, those of business management, law, finance, medical\nand/or other health professionals, health sector workers, and the\npatient or consumer perspective.\n 2. There shall be three non-voting members: one non-voting member\nshall be the chief executive officer of the corporation as appointed by\nthe voting directors of the board; and two other non-voting members who\nshall be the town supervisors of the towns of Clifton and Fine. Such\nmembers shall have all of the rights and powers of the voting directors\nother than the right and power to vote including, but not limited to,\nthe right to equal access to information, provided, however, when the\nboard is acting pursuant to its authority under subdivision four of this\nsection such chief executive officer may be excluded from such meeting\nand access to any information regarding actions of the board pursuant to\nsuch subdivision may be denied to him or her.\n 3. (a) The voting directors shall by majority vote elect from among\nits members annually a chairperson, a vice-chair to serve in the absence\nof the chairperson, a secretary and an assistant-secretary to serve in\nthe absence of the secretary. The first election shall be held at the\ntime of the first meeting of the members of the board.\n (b) The members shall receive no compensation for their services, but\nmay be reimbursed for their actual and necessary expenses incurred in\nconnection with the performance of their official duties if the\ncorporation shall so provide by resolution for such cases.\n (c) The powers of the corporation shall be vested in and shall be\nexercised by the board at a meeting duly called and held where a quorum\nof five voting directors is present. No action shall be taken by the\ncorporation except pursuant to the favorable vote of at least five\nvoting directors present at the meeting at which such action is taken.\n 4. The voting directors shall select and shall determine the salary\nand benefits of the chief executive officer of the corporation. The\nvoting directors shall have the authority to discharge the chief\nexecutive officer with or without cause; provided, however, that removal\nwithout cause shall not prejudice the contractual rights, if any, of the\nchief executive officer.\n 5. Notwithstanding any inconsistent provision of any general, special\nor local law, ordinance, resolution or charter, no officer, member or\nemployee of the state or of any public corporation shall forfeit his or\nher office or employment by reason of his or her acceptance of\nappointment as a director, non-voting representative, officer or\nemployee of the corporation, nor shall service as such a director,\nnon-voting representative, officer or employee be deemed incompatible or\nin conflict with such office, or employment, and provided further,\nhowever, that no employee of the corporation or public officer elected\nto his or her office pursuant to the laws of the state or any\nmunicipality thereof may serve as a voting member of the governing body\nof the corporation during his or her term of office.\n 6. The corporation and its corporate existence shall continue until\nterminated by law, provided, however, that no such termination shall\ntake effect so long as the corporation shall have bonds or other\nobligations outstanding, unless adequate provision has been made for the\npayment or satisfaction thereof. Upon termination of the existence of\nthe corporation, all of the rights and properties of the corporation\nthen remaining shall pass as the corporation and the towns may agree,\nand such terms and conditions may include reversion of said property and\nrights to the towns.\n 7. Contracts for work, construction or purchases to which the\ncorporation is a party shall be subject to the provisions of article\nfive-A of the general municipal law except as provided in subdivisions\neight and nine of this section. In addition to the procedures prescribed\nunder section one hundred four of the general municipal law for the\nutilization of the terms of state contracts, the corporation may utilize\nthe terms of a federal government general services contract where the\nterms are to the advantage of the corporation and have been offered to\nthe corporation by the contractor. When bids have already been received\nby the corporation no purchase under a federal government general\nservices contract shall be made unless the purchase may be made upon the\nsame terms, conditions and specifications at a lower price through such\ncontractor.\n 7-a. For the purposes of article fifteen-A of the executive law only,\nthe authority shall be deemed a state agency as that term is used in\nsuch article, and all contracts for procurement, design, construction,\nservices, and materials shall be deemed state contracts within the\nmeaning of that term as set forth in such article.\n 8. It is the intent of the legislature that overall costs should in\nall cases by a major criterion in the selection of project developers\nfor the award of contracts pursuant to this section and that, wherever\npractical, such contracts should be entered into through competitive\nbidding procedures as prescribed by sections one hundred one and one\nhundred three of the general municipal law. It is further the intent of\nthe legislature to acknowledge the highly complex and innovative nature\nof medical technology, diagnostic and treatment devices, the relative\nnewness of a variety of devices, processes and procedures now available,\nthe desirability of a single point of responsibility for the development\nof medical treatment and diagnostic facilities and the economic and\ntechnical utility of contracts for medical projects which include in\ntheir scope various combinations of design, construction, operation,\nmanagement and/or maintenance responsibility over prolonged periods of\ntime. In some instances it may be beneficial to the corporation to award\na contract for a medical project on the basis of factors other than cost\nalone, including but not limited to facility design, system reliability,\nefficiency, safety, and compatibility with other elements of patient\ncare. Accordingly, and notwithstanding the provisions of any general,\nspecial or local law, a contract for a medical project entered into\nbetween the corporation and any project developer pursuant to this\narticle may be awarded pursuant to public bidding in compliance with\nsections one hundred one and one hundred three of the general municipal\nlaw or pursuant to the following provisions for the award of a contract\nbased on evaluation of proposals submitted in response to a request for\nproposals prepared by or for the corporation:\n (a) The corporation shall require that each proposal to be submitted\nby a project developer shall include:\n (i) information relating to the experience and expertise of the\nproject developer on the basis of which said project developer purports\nto be qualified to carry out all work required by a proposed contract;\nthe ability of the project developer to secure adequate financing; and\nproposals for project staffing, implementation of work tasks, and the\ncarrying out of all responsibilities by a proposed contract;\n (ii) a proposal clearly identifying and specifying all elements of\ncosts which would become charges to the corporation, in whatever form,\nin return for the fulfillment by the project developer for the full\nlife-time of a proposed contract including, as appropriate, but not\nlimited to the cost of planning, design, construction, operation,\nmanagement and/or maintenance of any facility, and clearly identifying\nand specifying all elements of revenue which would accrue to the\ncorporation from the operation of the facility or device or from any\nother source; provided, that the corporation may prescribe the form and\ncontent of such proposal and that, in any event, the project developer\nmust submit sufficiently detailed information to permit a fair and\nequitable evaluation by the corporation of such proposal; and provided,\nfurther, that the corporation may set maximum allowable cost limits in\nany form in the request for proposals; and\n (iii) such other information as the corporation may determine to have\na material bearing on its ability to evaluate any proposal in accordance\nwith this paragraph.\n (b) Proposals received in response to such request for proposals shall\nbe evaluated by the corporation as to net cost or, if a net revenue is\nprojected, net revenue, and in a manner consistent with provisions set\nforth in the request for proposals, and may be evaluated on the basis of\nadditional factors, including but not limited to the technical\nevaluation of the medical project including medical facility, facility\ndesign, system reliability, energy balance and efficiency. The\nevaluation of such proposals and the determination of whether a project\ndeveloper is "responsible" may include, but shall not be limited to,\nconsideration, in a manner consistent with provisions set forth in the\nrequest for proposals, the record of the project developer is complying\nwith existing labor standards and recognizing state and federally\napproved apprentice training programs.\n (c) The corporation may make a contract award to any responsible\nproject developer based on a determination by the corporation that the\nselected proposal is most responsive to the request for proposals and\nmay negotiate with any project developer.\n Whenever the corporation enters into a contract pursuant to this\nsection for a medical project which involves construction the provisions\nof section two hundred twenty of the labor law shall be applicable to\nsuch construction work.\n 9. Every contract entered into between the corporation and a project\ndeveloper, pursuant to the provisions of paragraph (c) of subdivision\neight of this section, for a medical project involving construction of a\nmedical building by the project developer, shall contain provisions that\nsuch building shall be constructed through construction contracts\nawarded through bidding in accordance with paragraphs (a) through (g) of\nthis subdivision; that the project developer or the project developer's\nconstruction subcontractor shall furnish a bond guaranteeing prompt\npayment of moneys that are due to all persons furnishing labor and\nmaterials pursuant to the requirements of such construction contracts,\nand that a copy of such payment bond shall be kept by the corporation\nand shall be open to public inspection; provided, however, that the\nrequirements of this subdivision shall not apply when the cost of such\nconstruction, exclusive of the cost of medical equipment and devices, is\nless than five hundred thousand dollars.\n (a) The project developer shall advertise for bids for such\nconstruction contracts in the official newspaper or newspapers, if any,\nor otherwise in a newspaper or newspapers designated for such purpose.\nSuch advertisements shall contain a statement of the time and place\nwhere all bids received pursuant to such notice will be publicly opened\nand read. An employee of the corporation shall be designated to open\nthe bids at the time and place specified in the notice. All bids\nreceived shall be publicly opened and read at the time and place so\nspecified. At least five days shall elapse between the publication of\nsuch advertisement and date on which the bids are opened.\n (b) Except as otherwise provided in section two hundred twenty-two of\nthe labor law, when the entire cost of constructing such building,\nexclusive of any medical equipment, apparatus or devices, shall exceed\nfive hundred thousand dollars, the project developer shall prepare\nseparate specifications for the following subdivisions of such work, so\nas to permit separate and independent bidding upon each subdivision:\n (i) plumbing and gas fittings;\n (ii) steam heating, hot water heating, ventilating and air\nconditioning apparatus; and\n (iii) electric wiring and standard illuminating fixtures.\n (c) After public competitive bidding, the project developer shall\naward one or more separate contracts for each of the subdivisions of\nsuch work set forth in subparagraphs (i), (ii) and (iii) of paragraph\n(b) of this subdivision, whenever separate specifications are required\npursuant to paragraph (b) of this subdivision, and one or more contracts\nfor the remainder of such work. The project developer may award such\ncontract at different times. Contracts awarded pursuant to this\nsubdivision shall be awarded by the project developer to the lowest\nresponsible and responsive bidder and shall be contracts of the project\ndeveloper and not of the corporation which shall have no obligation or\nliabilities, whatsoever, thereunder. The project developer shall have\nthe responsibility for the supervision, coordination, and termination of\nsuch contracts, unless otherwise specified in contractual terms between\nthe project developer and the corporation.\n (c-1) Each bidder on a public work contract, where the preparation of\nseparate specifications is not required, shall submit with its bid a\nseparate sealed list that names each subcontractor that the bidder will\nuse to perform work on the contract, and the agreed-upon amount to be\npaid to each, for: (i) plumbing and gas fitting, (ii) steam heating, hot\nwater heating, ventilating and air conditioning apparatus and (iii)\nelectric wiring and standard illuminating fixtures. After the low bid is\nannounced, the sealed list of subcontractors submitted with such low bid\nshall be opened and the names of such subcontractors shall be announced,\nand thereafter any change of subcontractor or agreed-upon amount to be\npaid to each shall require the approval of the public owner, upon a\nshowing presented to the public owner of legitimate construction need\nfor such change, which shall be open to public inspection. Legitimate\nconstruction need shall include, but not be limited to, a change in\nproject specifications, a change in construction material costs, a\nchange to subcontractor status as determined pursuant to paragraph (e)\nof subdivision two of section two hundred twenty-two of the labor law,\nor the subcontractor has become otherwise unwilling, unable or\nunavailable to perform the subcontract. The sealed lists of\nsubcontractors submitted by all other bidders shall be returned to them\nunopened after the contract award.\n (d) In determining whether a prospective contractor is responsible and\nresponsive, the project developer may require that prospective\ncontractors:\n (i) have adequate financial resources or the ability to obtain such\nresources;\n (ii) be able to comply with the required or proposed delivery or\nperformance schedule;\n (iii) have a satisfactory record of performance;\n (iv) have the necessary organization, experience, operational\ncontrols, and technical skills, or the ability to obtain them;\n (v) have the necessary production, construction and technical\nequipment and facilities, or the ability to obtain them; and\n (vi) be eligible to receive an award under applicable laws and\nregulations and be otherwise qualified.\n (e) The project developer may reject any bid of a bidder which the\nproject developer determines to be nonresponsible or nonresponsive to\nthe advertisement for bids.\n (f) The project developer may, in its discretion, reject all bids, and\nmay revise bid specifications and may readvertise for bids as provided\nherein.\n (g) As used in this section:\n (i) "project developer" means any private corporation, partnership,\nlimited liability company, or individual, or combination thereof which\nhas submitted a proposal in response to a request for proposals;\n (ii) "construction" shall include reconstruction, rehabilitation or\nimprovement exclusive of the installation and assembly of any medical\nequipment, apparatus or device;\n (iii) "medical building" means that component of a medical project\nconstituting appurtenant structures or facilities necessary to house or\nrender the remaining components of the medical project operational.\nMedical building shall not include apparatus, equipment, devices,\nsystems, supplies or any combination thereof;\n (iv) "medical project" means any substantial durable apparatus,\nequipment, device or system, or any combination of the foregoing,\nincluding services necessary to install, erect, or assemble the\nforegoing and any appurtenant structures or facilities necessary to\nhouse or render the foregoing operational, to be used for the purpose of\ncare, treatment or diagnosis of disease or injury or the relief of pain\nand suffering of sick or injured persons. Medical projects shall not\ninclude ordinary supplies and equipment expended or utilized in the\ncustomary care and treatment of patients.\n 10. (a) For purposes of applying section eighty-seven of the public\nofficers law, to the corporation, the term "trade secrets" shall include\nmarketing strategy or strategic marketing plans, analyses, evaluations\nand pricing strategies or pricing commitments of the corporation,\nrelating to business development, which, if disclosed, would be likely\nto injure the competitive position of the corporation.\n (b) In addition to the matters listed in section one hundred five of\nthe public officers law, the corporation may conduct an executive\nsession for the purpose of considering marketing strategy or strategic\nmarketing plans, analyses, evaluations and pricing strategies of the\ncorporation, relating to business development, which, if disclosed,\nwould be likely to injure the competitive position of the corporation.\n